Gennaro v. Colvin

Filing 20

ORDER re: 9 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn Colvin, by Magistrate Judge Michael E. Hegarty on 2/02/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03247-MEH
CARMAN GENNARO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge
Plaintiff, Carman Gennaro, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying his application for disability insurance benefits (“DIB”),
filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper
under 42 U.S.C. § 405(g). Oral argument would not materially assist the Court in its determination
of this appeal. After consideration of the parties’ briefs and the administrative record, the Court
AFFIRMS the Commissioner’s final order.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the Commissioner’s decision denying his application for
disability insurance benefits filed on December 9, 2010. [Administrative Record (“AR”) 264-266]
After the application was initially denied on March 31, 2011 [AR 199-201], an Administrative Law
Judge (“ALJ”) scheduled a hearing upon the Plaintiff’s request for July 25, 2012 [AR 232-236];

Plaintiff and a vocational expert gave testimony at the hearing. [AR 38-84] The ALJ issued a
written ruling on August 10, 2012, in which the ALJ denied Plaintiff’s application stating he was
not disabled since December 11, 2009, because the Plaintiff did not have a severe impairment
equaling those listed in the applicable federal regulations (Step 3); he had the residual functional
capacity (“RFC”) to perform work with some limitation on exertional levels and some limitation on
non-exertional levels (Step 4); and considering Plaintiff’s age, education, work experience and RFC,
there are jobs existing in significant numbers in the national economy that Plaintiff can perform
(Step 5). [AR 20-34]
On September 27, 2013, the SSA Appeals Council denied Plaintiff’s administrative request
for review of the ALJ’s determination, making the SSA Commissioner’s denial final for the purpose
of judicial review. [AR 1-4] See 20 C.F.R. § 416.1481. Plaintiff timely filed his complaint with
this Court seeking review of the Commissioner’s final decision.
II. BACKGROUND
Plaintiff was born on December 27, 1962; he was 47 years old when he filed his application
for disability income benefits on December 9, 2010. [AR 302-308] Plaintiff claims his disability
began on December 11, 2009, and he was not disabled prior to the age of 22. [Id.] For the present
application, Plaintiff reported that he was limited in his ability to work by a ruptured disc in his
neck; Type 2 Diabetes; heart disease; and depression. [AR 303] Plaintiff claims that his last day
of work was December 11, 2009 because he “was fired from this employer.” [Id.] Plaintiff reported
that his ability to work is limited because it “causes pain in neck, memory loss (at times), trouble
sleeping, mood swings, sometimes vision blur[ry], need to use bathroom many times & meds cause
2

diarrhea.” [AR 311] Plaintiff states that he took Fluoxetine for depression and an “unknown”
medicine that caused diarrhea as a side effect. [AR 318]
Plaintiff’s work history included “auto parts installer” from 1987-1994; “sand blaster” from
1994-1999; “lumbar warehouse and sales” from 1999-2001; “tire and lube tech” in 2002; “elec sales
security coordinator” from 2002-2004; an “emissions testing lane inspector” from 2004-2006; and
a “P.S.M at AutoZone” from May 2006 to Dec 2009. [AR 320] His earnings in 1987 through 2007
varied between $5,649.52 to $27,656.84; in 2008 were $23,098.72; and in 2009 were $23,990.55.
[AR 281-282] There is no income listed for the years 2010-2012. [Id.]
Plaintiff claims that he was seen at the Veterans Administration Medical Center (“VA”) for
treatment of his disabling conditions. [AR 306] The first medical record Plaintiff submitted
supporting his application is from January 5, 2009, which indicates that Plaintiff had been prescribed
Atenolol and Lisinopril for blood pressure, Glyburide and Metformin for diabetes, Fenofibrate
(unknown), and Niacin for lowering cholesterol [AR 412-414] Plaintiff reported that he “has been
feeling good” and “has been compliant with med[ication]s.” [AR 413] After examination, the
physician noted that Plaintiff’s hypertension and diabetes were “well-controlled,” but his
“trigylerides [were] remarkably high,” so advised the Plaintiff to repeat a “lipids” test after fasting.
[AR 413-414] However, the Plaintiff “did not show” for the scheduled lipid clinic appointment on
March 5, 2009. [AR 411-412]
The next record, from October 20, 2009, indicates that Plaintiff reported he “feels very well
today,” his diabetes mellitus and hypertension were “well-controlled,” but his trigylerides were
“remarkably high,” so again the physician advised the Plaintiff to fast before attending the lipids
3

clinic for a blood draw. [AR 406-409] Notably, for the “depression screen,” Plaintiff responded to
the questions, “little interest or pleasure in doing things” and “feeling down, depressed or hopeless”
with the term, “not at all.” [AR 410] The physician also noted Plaintiff’s body mass index at 35.7
and advised Plaintiff of the benefits of a weight management program offered at the VA; Plaintiff
declined. [AR 411]
Although the records indicate Plaintiff had a followup appointment for January 26, 2010 [AR
[AR 403], the next record indicates Plaintiff came in for a follow-up appointment on March 2, 2010.
Plaintiff reported he “has been laid off from work lately” and “has actually been feeling great in
terms of his health lately” but “would like to discuss how he can cut down on his meds to save
money.” [AR 398] The physician noted that Plaintiff had been taking his medication for diabetes
every day and found that his hypertension was “well controlled,” but noted “remarkably high”
trigylerides again where the Plaintiff did not fast. [AR 399] She referred Plaintiff again to the lipid
clinic. [Id.]
Plaintiff attended the lipid clinic on August 4, 2010; the pharmacist noted that, since
Plaintiff’s trigylerides were lower despite reduction in medication, the improvement was due to
dietary changes and she would “try Niacin monotherapy” and “discontinue Fenofibrate.” [AR 392]
Plaintiff next called the VA on August 10, 2010 to inquire whether he could see a physician sooner
than his next scheduled date in October to complete social security disability “paperwork.” [AR 387]
He was advised that he needed to bring the paperwork to the doctor. [Id.] Plaintiff did not “show”
for the next scheduled appointment with the lipid clinic on September 22, 2010. [AR 386]
On November 16, 2010, Plaintiff saw Christopher King, M.D. for a “follow-up” appointment
4

at which he first mentions a “ruptured disk” in his neck at C4-5 which causes headaches a couple
of times per day. [AR 471-476] Plaintiff reported that the pain was not severe, but it bothered him
and likely caused depression. [AR 473] He also told the doctor that he had been laid off from work
and was unable to find a job, so “should be on disability.” [Id.] Dr. King disagreed with Plaintiff
saying, “Pt does not have a reason to be on disability; he is actively trying to get a job and I
encouraged him in this.” [AR 475] The doctor did, however, determine Plaintiff to be depressed and
prescribed an “SSRI.” [Id.] Dr. King also noted that, although Plaintiff’s body mass index had risen
to 36.1, Plaintiff declined exercise and nutrition counseling. [AR 476]
Plaintiff filed the present application for disability benefits on December 9, 2010 [AR 264271] claiming the following conditions limited his ability to work since December 2009: ruptured
disk in neck; Type II Diabetes; heart disease; and depression. [AR 303] Thereafter, on January 11,
2011, Plaintiff called the VA to report that his anti-depressant was causing sleepiness and more neck
pain and to ask for a call back by the doctor; Dr. King returned Plaintiff’s call and advised him to
stop the SSRI and to follow up with the doctor in February. [AR 469-470]
Meanwhile, on January 13, 2011, the Plaintiff completed several questionnaires for the SSA,
including a Function Report in which the Plaintiff reported that he could perform some house and
yard work on a daily basis; laundry; prepare meals (unless he did not want to); spend time with his
pets; handle his finances; spend time with others on the phone or computer on a daily basis; drive;
ride a motorcycle; walk for 30 minutes before needing a rest; handle stress well, but not changes in
routine; and get along with authority figures and his family, unless mood swings made it difficult.
[AR 311-318] Plaintiff claimed that his neck pain was mostly a mild ache every day, but sharp at
5

times and never stopped. [AR 319]
Following the filing of his present application, Plaintiff was referred to Frank J. Wright,
M.D. for a consultative physical/psychological examination on March 16, 2011. [AR 416] Dr.
Wright noted that he “believe[d] this claimant was being truthful and the exam was performed with
full cooperation.” [AR 418] Plaintiff reported to Dr. Wright that his neck injury occurred 15 years
previously in a motor vehicle accident, he has had MRIs and CT scans and one cortisone shot, and
gets headaches from the neck injury 3-4 times per month. [AR 416] He also told the doctor that he
has no problems with his feet, eyes or kidneys from his diabetes and his heart disease “consists only
of hypertension for which he takes medications.” [Id.] Plaintiff claimed that he “cannot work now
because [the pain] is very tiring and he has very limited energy.” [AR 417] He also asserted that he
could sit for two hours, stand for 30 minutes and walk for 20-30 minutes, and conceded that his
medications help him. [Id.] After a full physical examination, Dr. Wright found Plaintiff’s
functioning to be “fair” and his findings matched Plaintiff’s stated limitations; accordingly, Dr.
Wright determined Plaintiff could do the following in an 8-hour day: sit for four hours, up to an hour
at a time; stand and walk for four hours, up to a half hour at a time; bend no more than three times
in an hour; lift 20 pounds; carry 10 pounds; converse, travel independently, and perform daily
activities and repetitive motions; but could neither squat nor crawl. [AR 420] In addition, Dr. Wright
ordered an x-ray of Plaintiff’s cervical spine; the radiologist found “moderately severe cervical
spondylosis.” [AR 415]
The following week, George Hearne from the SSA Disability Determination Services called
the Plaintiff to inquire about the “severity of [his] depression.” [AR 332] Plaintiff reported that his
6

depression was “due to physical conditions and not overly severe”; Mr. Hearne noted the Plaintiff
“does not feel that a psych CE is needed and thinks that his physical conditions are his main
problems.” [Id.]
On March 31, 2011, the SSA sent to Plaintiff a Notice of Disapproved Claim stating “[w]e
have determined that your condition is not expected to remain severe enough for 12 months in a row
to keep you from working.” [AR 199] The notice informed Plaintiff that, if he disagreed with the
decision, he had a right to request a hearing within 60 days after receiving the notice. [ AR 200]
Thus, on April 20, 2011, Plaintiff completed an Appointment of Representative form with the DDS
which identified Sasha Kurbegov as his attorney [AR 197], and on May 5, 2011, he completed a
Request for Hearing by Administrative Law Judge form [AR 202].
On May 18, 2011, the Office of Disability Adjudication and Review (ODAR) sent Mr.
Kurbegov a letter confirming receipt of the request for hearing, informing Plaintiff of hearing
procedures and explaining that a Notice of Hearing will be sent at least 20 days before the hearing
notifying him of the time and place. [AR 204-205]
Meanwhile, on June 7, 2011, Plaintiff visited Dr. King at the VA for a “follow up.” [AR 465468] Plaintiff reported that he had been “having good control of his [diabetes mellitus],” he stopped
taking his SSRI “as it made him very sleepy,” and he had “no change in his chronic neck pain and
has continued to do some exercises taught to him in PT.” [AR 466] Dr. King determined to try a
different SSRI to “help with fatigue and neck pain”; continue with same physical therapy and overthe-counter medications for neck; and continue all other medications. [AR 467] Thereafter, Dr. King
attempted to call Plaintiff regarding a medication change in July and August 2011, but his phone was
7

disconnected and/or Plaintiff did not answer. [AR 468]
On October 11, 2011, Plaintiff presented for “continued care” with Dr. King; he reported
having chest pain (for three months), back pain, and shoulder pain but no shortness of breath, and
still feels tired. [AR 454] Dr. King found “no evidence of cardiac or pulmonary issues,” Plaintiff’s
diabetes medication would remain the same but Plaintiff needed to watch his diet and exercise, his
hypertension was “well-controlled,” his LDL was “at goal,” and there was a need to increase the
SSRI dosage for Plaintiff’s depression. [AR 456]
Plaintiff next presented to Dr. King on January 10, 2012 for continued care; he reported his
chest pain was unchanged, his left knee “continued to cause him pain” since an injury months ago,
he suffered from “scalp lesions,” and his C-spine pain continued so he requested an MRI. [AR 448449] Dr. King noted the chest pain was not cardiac-related and that Plaintiff had not followed pain
regimen (NSAIDs) prescribed at the last visit. [AR 450] The doctor also ordered an MRI for
Plaintiff’s neck and noted the diabetes test was “at goal,” the hypertension was “well-controlled”
and Plaintiff had not improved with his depression medication, but he did not want to increase it.
[Id.] The x-ray of Plaintiff’s knee was “normal.” [AR 447]
Plaintiff returned a week later complaining that he had not received the medication for his
scalp lesions, that his left knee still hurt, and that the SSRI had made him “lethargic” and he wanted
to be taken off of it. [AR 446] Jennifer Poole, M.D. diagnosed “pre-patellar bursitis” and prescribed
NSAIDs for the pain and gave Plaintiff instructions for weaning off the SSRI. [AR 447] On January
24, 2012, Dr. King called the Plaintiff “reinforcing taking NSAIDs for knee pain” and letting him
know the doctor completed paperwork regarding Plaintiff’s restrictions in walking and lifting for
8

the Arapahoe Workforce. [AR 441]
Plaintiff presented to Glenn Woning II, M.D. on February 29, 2012 complaining of continued
knee pain and reporting that he does not want to take the NSAIDs as it only masks his pain and he
wants to get to the underlying problem; Plaintiff also asked that paperwork be completed for limiting
his activity for work that is required to obtain food stamps. [AR 433-434] The doctor diagnosed prepatellar bursitis and explained that NSAIDs are necessary to reduce inflammation; if no
improvement then would consider steroid injection. [AR 434]
On March 2, 2012, Dr. King addressed a letter to Plaintiff regarding the results of his MRI
on his neck; the doctor noted, “There is nothing that would urgently need attention at this time.
Physical therapy would be an option to help with your pain[;] I would be happy to talk with you
about this at our next visit.” [AR 431]
On May 2, 2012, Plaintiff completed an Appointment of Representative form identifying
Joseph Whitcomb of the Rocky Mountain Disability Group as his new counsel. [AR 223] The
McDivitt Law Firm withdrew its representation of the Plaintiff on May 7, 2012. [AR 226]
On May 15, 2012, Plaintiff presented to Dr. King for continued care. [AR 428-430] Plaintiff
complained that his knee still hurt but the swelling had subsided with taking ibuprofen, and he
noticed some lack of feeling in his feet and fingers. [Id.] Dr. King noted Plaintiff’s medication had
controlled his diabetes; there was no foot disease; he would start Plaintiff on Gabapentin for knee
pain; Plaintiff’s hypertension was “well-controlled”; and Plaintiff would try non-pharmocological
methods for relieving depression. [Id.] Another record indicates the VA Mental Health Clinic staff
addressed a letter to the Plaintiff on May 15, 2012 saying they attempted to reach Plaintiff by
9

telephone (but were unsuccessful) to evaluate his need for mental health services. [AR 515] On May
29, 2012, Dr. King addressed a letter to Plaintiff informing him that his test results for diabetes
hemoglobin A1C was too high and that he would refer Plaintiff to the pharmacy for further treatment
and management. [AR 511]
Plaintiff presented to the VA Emergency Department on June 8, 2012 complaining of
swollen feet, likely from a new medication, Neurontin. [AR 504] The physician noted that “edema
is a known side effect of Neurontin”; accordingly, the doctor discontinued the medication and
referred Plaintiff to Podiatry for a foot nodule. [AR 506] The Plaintiff informed the VA on June 12,
2012 that the swelling had subsided after he stopped the Neurontin [AR 503], but called again on
June 19, 2012 saying that the swelling had returned [AR 501].
The following week, Plaintiff saw Joseph Keach, M.D. at the VA on June 26, 2012 for
evaluation of his knee pain, feet swelling and nodules on both feet. [AR 499] Dr. Keach determined
to “monitor” the swelling and ordered compression socks for the Plaintiff; he also advised Plaintiff
to stretch and exercise his knee and referred Plaintiff to Podiatry for foot nodules. [AR 500] The
Plaintiff visited Dr. King the next week, on July 2, 2012, for continued care. [AR 494] Plaintiff
reported some continued swelling and stated he “still wants his disability paperwork filled out.” Dr.
King noted that Plaintiff had not been taking his diabetes medications regularly but would do so in
the future; that Plaintiff’s hypertension was “over controlled”; that Plaintiff’s neck pain was
unchanged and he was “working to get disability” for it, but Dr. King stated that he could not
comment because he did not have the testing equipment necessary; and that Plaintiff’s LDL was
controlled. [AR 496]
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Meanwhile, on June 20, 2012, the ODAR sent Plaintiff a Notice of Hearing informing the
Plaintiff that the hearing would occur on July 25, 2012 in Denver, Colorado. [AR 232-236] The
notice contained forms for the Plaintiff to complete, including an acknowledgment of receipt of the
notice, recent medical treatment, medications and work history. [AR 237-255] Plaintiff signed an
acknowledgment of receipt of the notice on June 30, 2012. [AR 257]
On July 11, 2012, the ODAR sent to Plaintiff and his counsel an “Important Reminder” of
the hearing scheduled for July 25, 2012. [AR 258-259] The day of the hearing, Plaintiff and his
counsel appeared and William Tisdale appeared as a vocational expert. [AR 38] Plaintiff testified
that he completed the twelfth grade in school; described his past work as a sandblaster, anode maker,
warehouse order taker, lumber warehouse customer service, security coordinator, emissions lane
inspector, and parts service manager; he was fired from his last job for alleged failure to follow
procedure resulting in customer theft; he received unemployment benefits for nearly two years for
which he indicated he was ready, willing and able to work; completed seven applications per week
while looking for work; the medications he was currently taking “helped”; he brought a cane to the
hearing because his knee was “a little sore”; started using the cane months previously when he
injured his knee; at his last job, he took naps and needed to use the bathroom more often due to
diabetes; after termination, looked for the same type of jobs he had done in the past; the majority
of his pain is in his neck and shoulders; has trouble lifting and bending over; still has headaches one
to two times per day which reach a 3 on a scale of 1-10; while Dr. King referred him for mental
health therapy he had not “gotten any response back yet”; he had a high threshhold for pain; he
believes he was terminated in part due to his injuries; he rarely socialized and spent most of his time
11

at home due to low energy; he took one dose daily of over-the-counter medication for neck pain;
he would not be able to assemble parts at a workbench for two hours due to neck pain; he can only
sit bent over working on something for 15-20 minutes at a time; can stand for 45 minutes at a time
due to lower back pain; he can sit looking at a computer screen for “quite awhile,” 45-60 minutes
at a time; he can walk for 30 minutes due to lower back pain; rests once or twice per day for 20-30
minutes for headaches; he meets people at restaurants, but rarely invites people to his house because
of difficulty keeping it clean; once a month, he spends most of the day in bed due to depression;
diabetes limits his ability to work in rare blurry vision and medications cause diarrhea; he works in
his vegetable garden 1-2 hours per week; drove his motorcycle three times per week up to 30
minutes per instance; spent 5-6 hours per day on the computer but not all at one time; went to the
grocery store twice a month; and could lift 25 pounds once every hour. [AR 43-76]
After listing the skill and exertional levels for Plaintiff’s past work, the vocational expert,
Mr. Tisdale, then testified that a hypothetical employee – same age and educational background as
the Plaintiff; who cannot climb scaffolds or ladders, but can lift and carry up to 20 pounds
occasionally and 10 pounds frequently, can sit at least an hour at a time for six hours during the day,
can stand or walk at least an hour at a time for six hours during the day, and can occasionally stoop,
kneel and crouch – could perform the Plaintiff’s past work as a parts salesperson, lane inspector and
sandblaster. [AR 77-79] However, if the limitations of carrying were changed to 10 pounds, sitting
were changed to an hour at a time for four hours, and standing and walking were changed to 30
minutes at a time for four hours, the individual could still perform the parts salesperson and lane
inspector positions, but could not perform the sandblaster position. [AR 79] If the limitations were
12

further changed to the individual needs to have the option to relax for five minutes every 30 minutes
throughout the day, the Plaintiff could perform no competitive work. [AR 80] When asked if the
hypothetical employee were limited to bending at the waist no more than three times per hour, Mr.
Tisdale testified such limitation would preclude parts salesperson and lane inspector, but the
individual could perform the jobs of food and beverage order clerk, call-out operator and charge
account clerk, with the option to sit and stand. [AR 81-82]
A medical record from July 27, 2012 indicates that the VA Endocrine Service recommended
Plaintiff self-monitor his blood glucose level, participate in medical nutrition therapy, and start basal
insulin to improve glycemic control for Plaintiff’s diabetes. [AR 490-491]
On August 10, 2012, the ALJ issued an unfavorable decision finding the Plaintiff not
disabled since December 2009, determining that Plaintiff had been engaged in no substantial gainful
activity since the onset date; he suffered severe impairments of diabetes, neck and shoulder
pain/moderately severe cervical spondylosis, and obesity, none of which met or medically equaled
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; and Plaintiff had a residual
functional capacity that allowed him to perform jobs that exist in significant numbers in the national
economy. [AR 23-34] Plaintiff requested review of the decision by the Social Security Appeals
Council on August 23, 2012. [AR 18-19]
Meanwhile, the Plaintiff presented to the VA for a Diabetic Teleretinal Imaging for Diabetic
Retinopathy on August 14, 2012. [AR 544-546] The exam results were normal. [AR 538] That same
day, Plaintiff visited a Clinical Pharmacy Specialist for diabetes management; the clinician noted
that Plaintiff had significant difficulty with adhering to his medication regimen due to memory loss
13

from stress associated with his brother’s death the previous year and due to financial issues. [AR
547] Plaintiff conceded that he did not always follow a diabetic diet and he did not wish to start any
new medications, including insulin, but would if he had to. [Id.] The clinician noted that Plaintiff’s
diabetes was uncontrolled due to inconsistencies in taking medication and staying on a diet; he
encouraged Plaintiff to adhere to medication regimen and diet and deferred medication changes until
lab results received. [AR 549-550] Two days later, the clinician telephoned the Plaintiff with the lab
results; they were improved from May, so the clinician increased only the Plaintiff’s over-thecounter medication; Plaintiff declined any further change in his medication regimen. [AR 550-551]
Plaintiff presented to the VA Podiatry department on August 28, 2012 for a “diabetic foot
check.” [AR 541-543] Plaintiff reported that a nodule on his foot “was no longer present” and denied
any other concerns. [AR 541] After examination, the physician “educated patient on proper foot
care,” ordered compression stockings, and advised Plaintiff to return in six months for continued
care. [AR 543] Plaintiff went back to the VA on September 10, 2012 complaining of pain from the
stockings; the physician noted that the stockings were snug in the same place as Plaintiff’s injury
to his knee and advised Plaintiff to wear them only 2-3 hours at a time. [AR 535-537] At a follow-up
on September 25, 2012, the physician noted Plaintiff’s knee pain was exacerbated by the
compression stockings and referred him for a physical therapy consultation. [AR 532-534]
On October 15, 2012, Plaintiff saw his new primary care physician, Allan Prochazka, M.D.
to whom Plaintiff complained about the knee pain, fatigue and the bump on his left foot. [AR 529530] Dr. Prochazka noted Plaintiff’s diabetes was under “control,” his blood pressure was “at
target,” and his lipids were “improved with fasting,” and ordered a physical therapy consultation for
14

Plaintiff’s knee and a pulmonary consultation for Plaintiff’s sleepiness/fatigue. [AR 531] Plaintiff
reported to the pulmonary clinic on November 5, 2012; the physician suspected “sleep disordered
breathing” and counseled Plaintiff to lose weight, stop caffeine six hours before bed, and turn off
the television in the bedroom. [AR 521-524]
Plaintiff next saw Dr. Prochazka on February 11, 2013; the doctor noted Plaintiff’s blood
pressure was “at target,” that his diabetes medications may need to be adjusted, that neuropathy in
the feet was in question, and that he would monitor a nodule on Plaintiff’s foot. [AR 172-175] On
February 25, 2013, Dr. Prochazka addressed a letter to Plaintiff regarding his lab results saying his
blood sugar was elevated and referring the Plaintiff to a Diabetes Educator. [AR 168-169] Plaintiff
saw the Diabetes Educator on April 15, 2013; the nurse noted that Plaintiff “lacks knowledge and
skills [in] diabetes self-management.” [AR 126] The nurse educated Plaintiff on the disease and
necessary diet, exercise and medication regimen. [AR 127] Plaintiff also saw Dr. Prochazka the
same day and agreed to try medication change for diabetes, including insulin, and weight reduction
program. [AR 128-130] However, on May 15, 2013, the day he was to attend orientation for the
weight program, Plaintiff called and canceled saying that he “wasn’t getting the service he
expected,” and declined to reschedule. [AR 124]
At his May 17, 2013 diabetes management appointment, Plaintiff reported that his neck and
knee pain limit his ability to exercise and he canceled the weight reduction program because he did
not have the finances to travel to the program. [AR 121] The nurse educated Plaintiff about his diet,
exercise and stress. [AR 122] Plaintiff returned the following month, on June 17, 2013, reporting
frustration that his blood sugars were the same with increased exercise and better diet and that his
15

sleep study did not work out. [AR 114] The nurse encouraged Plaintiff to start insulin; Plaintiff
agreed to discuss it with Dr. Prochazka. [AR 115-116] That same day, Plaintiff reported to
Pulmonology to schedule another sleep study. [AR 116-119]
On June 26, 2013, Plaintiff presented to the VA first to a doctor, then to a nurse for
instructions on insulin injections. [AR 109-112] He reported to the physician that he was diagnosed
by Pulmonology with reactive airway disease and prescribed Symbicort with which he had
improved. [Id.] The physician noted that, while Plaintiff’s diabetes was “uncontrolled,” his
hypertension was “under good control.” [AR 112] Plaintiff followed up with the VA on July 11,
2013 reporting that he had used the insulin as instructed every day. [AR 105-108] The physician
referred Plaintiff to the Diabetes Educator for an appointment on July 29, 2013 and to nutrition
education on August 21, 2013. [AR 108]
On September 27, 2013, the Appeals Council “found no reason under our rules to review the
Administrative Law Judge’s decision,” and denied the Plaintiff’s request for review. [AR 11-32]
III. LAW
To qualify for benefits under sections 216(I) and 223 of the SSA, an individual must meet
the insured status requirements of these sections, be under age 65, file an application for DIB for a
period of disability, and be “disabled” as defined by the SSA. 42 U.S.C. §§ 416(I), 423, 1382.
Additionally, SSI requires that an individual meet income, resource, and other relevant requirements.
See 42 U.S.C. § 1382.
Here, the Court will review the ALJ’s application of the five-step sequential evaluation
process used to determine whether an adult claimant is “disabled” under Title II and Title XVI of
16

the Social Security Act, which is generally defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137,
140 (1987).
Step One determines whether the claimant is presently engaged in substantial gainful
activity. If he is, disability benefits are denied. See 20 C.F.R. § 404.1520. Step Two is a
determination of whether the claimant has a medically severe impairment or combination of
impairments as governed by 20 C.F.R. § 404.1520(c). If the claimant is unable to show that his
impairment(s) would have more than a minimal effect on his ability to do basic work activities, he
is not eligible for disability benefits. See 20 C.F.R. 404.1520(c). Step Three determines whether the
impairment is equivalent to one of a number of listed impairments deemed to be so severe as to
preclude substantial gainful employment. See 20 C.F.R. § 404.1520(d). If the impairment is not
listed, he is not presumed to be conclusively disabled. Step Four then requires the claimant to show
that his impairment(s) and assessed residual functional capacity (“RFC”) prevent him from
performing work that he has performed in the past. If the claimant is able to perform his previous
work, the claimant is not disabled. See 20 C.F.R. §§ 404.1520(e), (f). Finally, if the claimant
establishes a prima facie case of disability based on the four steps as discussed, the analysis
proceeds to Step Five where the SSA Commissioner has the burden to demonstrate that the claimant
has the RFC to perform other work in the national economy in view of his age, education and work
experience. See 20 C.F.R. § 404.1520(g).
17

IV. ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity since December
11, 2009, the alleged onset date (Step One). [AR 25] The ALJ further determined that Plaintiff had
the following severe impairments: (1) diabetes; (2) neck and shoulder pain/moderately severe
cervical spondylosis; and (3) obesity (20 C.F.R. § 404.1520(c)) (Step Two). [Id.] The ALJ
specifically found that Plaintiff’s depression was not severe because it “does not cause more than
minimal limitation in the claimant’s ability to perform basic mental work activities.” [AR 25-26]
The ALJ also found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (Step Three). [AR 26-27]
The ALJ then determined that Plaintiff had the RFC to perform “a range of light work as
defined in 20 CFR 404.1567(b) with the following limitations: the claimant must avoid climbing
ladders and scaffolding; the claimant can lift and carry 10 pounds frequently and 20 pounds
occasionally; the claimant is able to sit for at least one hour at a time and up to four hours during an
eight-hour workday; the claimant can stand for at least 30 minutes at a time and up to four hours
during an eight-hour workday; the claimant can walk for at least 30 minutes at a time and up to four
hours during an eight-hour workday; and the claimant can occasionally stoop, kneel and crouch.”
[AR 27] The ALJ found Plaintiff’s statements regarding the intensity, persistence and limiting
effects of his physical symptoms not credible to the extent they were inconsistent with the RFC
assessment; the objective medical evidence and exam findings are inconsistent with Plaintiff’s
statements regarding his physical health; and Plaintiff’s allegations of disabling mental symptoms
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are inconsistent with the record. [AR 20-25]
The ALJ next ruled that Plaintiff was capable of performing two positions from his past
relevant work (Step Four) and, alternatively, determined that considering Plaintiff’s age, education,
work experience and residual functional capacity, Plaintiff could perform work existing in
significant numbers in the national economy (Step Five). [AR 32-34] As a result, the ALJ
concluded that Plaintiff was not disabled at Steps Four and Five of the sequential process and,
therefore, was not under a disability as defined by the SSA. [AR 34]
Plaintiff sought review of the ALJ’s decision by the Appeals Council; however, the Council
determined it had “no reason” under the rules to review the decision and, thus, the ALJ’s decision
“is the final decision of the Commissioner of Social Security.” [AR 1]
V. STANDARD OF REVIEW
This Court’s review is limited to whether the final decision is supported by substantial
evidence in the record as a whole and whether the correct legal standards were applied. See
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001). Thus, the function of the Court’s review is “to determine whether the
findings of fact ... are based upon substantial evidence and inferences reasonably drawn therefrom.
If they are so supported, they are conclusive upon the reviewing court and may not be disturbed.”
Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970). “Substantial evidence is more than
a scintilla, but less than a preponderance; it is such evidence that a reasonable mind might accept
to support the conclusion.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court may not re-weigh the evidence nor
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substitute its judgment for that of the ALJ. See Casias v. Secretary of Health & Human Servs., 933
F.2d 799, 800 (10th Cir. 1991) (citing Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir. 1987)).
However, reversal may be appropriate when the ALJ either applies an incorrect legal standard or
fails to demonstrate reliance on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996).
VI. ISSUES ON APPEAL
On appeal, Plaintiff raises three issues: (1) the ALJ “discriminately accepted only the
evidence least favorable to Mr. Gennaro”; (2) the ALJ “did not sufficiently consider depression,
pain, the side effects of Mr. Gennaro’s diabetes treatment, or obesity”; and (3) the “ALJ’s
determination that Mr. Gennaro could perform other work in the economy was based on a wrong
legal standard and not supported by substantial evidence.” [Opening Brief, Statement of Errors,
docket #13 at 1-2]
VII. ANALYSIS
The Court will analyze each of Plaintiff’s issues in turn.
A.

Did the ALJ Improperly “Pick and Choose” from the Evidence?
Plaintiff argues that the ALJ improperly chose to adopt some, but not all of the findings of

the consultative physician when he gave substantial weight to the physician’s findings but rejected
evidence of the carrying and bending restrictions that were favorable to the Plaintiff’s claim.
Plaintiff asserts that the ALJ’s finding that the physician’s opinions indicated a “greater sustained

20

capacity” than Plaintiff’s testimony is incorrect. Plaintiff asks that the Court1 remand “with orders
to consider Mr. Gennaro’s residual functioning capacity with the admission of the bending
restriction found by the consultative expert.”
Defendant counters that, even if true that the ALJ rejected the bending restriction for his
RFC, the vocational expert testified at hearing that an individual with Plaintiff’s age, background
and experience could perform other jobs in the national economy with the ALJ’s restrictions listed
in the RFC and the bending restriction set by the consultative physician. Although provided the
opportunity to do so, the Plaintiff did not file a reply brief.
It is improper for an ALJ to “pick and choose through an uncontradicted medical opinion,
taking only the parts that are favorable to a finding of nondisability.” Chapo v. Astrue, 682 F.3d
1285, 1292 (10th Cir. 2012). Moreover, “[a]n ALJ’s rejection of a medical opinion based on an
incorrect reading of the record is grounds for remand.” Sedlak v. Colvin, No. 11-cv-01247-PAB,
2014 WL 717914, at *10 (D. Colo. Feb. 24, 2014) (citing Mercer v. Colvin, No. 12-CV-35-FHM,
2013 WL 785358, at *2 (N.D. Okla. Mar. 1, 2013)).
For this issue, the Court agrees with the Defendant. Here, Dr. Wright, the consultative
physician, opined that Plaintiff should be restricted to bending no more than three times per hour.
However, the ALJ did not include any restriction for “bending” in the RFC, which he found was not
supported by the record as a whole. [AR 27, 33] As such, after learning of the ALJ’s proposed RFC
presented to the vocational expert at the hearing, and hearing the expert’s testimony that Plaintiff

1

Plaintiff’s actual request is addressed to the “Appeals Council,” but based upon the
content of the brief, the Court construes such address as a typographical error.
21

could perform two of his previous jobs under such RFC, Plaintiff’s counsel then asked the expert,
“if the individual were limited to bending at the waist no more than three times per hour, would that
affect your answer to the second hypothetical?” [AR 81] The expert replied that both jobs would be
precluded, but determined that with the bending restriction added to the RFC, the individual could
perform the jobs of “order clerk, food and beverage,” “call-out operator,” and “charge account
clerk.” [Id.] The ALJ found at Step 5 that Plaintiff could perform these jobs, which “exist in
significant numbers in the national economy” and determined Plaintiff was “not disabled.” [AR 3334] Accordingly, had the ALJ included the bending restriction in his RFC, he still would have made
the non-disability determination at Step 5.
The Court concludes that even if the ALJ erred in rejecting the bending restriction set by Dr.
Wright, the error was harmless and, thus, denies Plaintiff’s request to remand the ALJ’s decision on
this issue. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (where the ALJ’s
RFC was generally consistent with the physician’s findings and there was no reason to believe a
further analysis or weighing of the opinion could advance the disability claim, the alleged error was
harmless).
B.

Did the ALJ Sufficiently Consider Plaintiff’s Depression, Pain, Obesity and the Side
Effects of Diabetes Treatment?
“When a claimant has one or more severe impairments the Social Security [Act] requires the

[Commissioner] to consider the combined effects of the impairments in making a disability
determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. §
423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments

22

does not require a finding that an individual is disabled within the meaning of the Act. To be
disabling, the claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th
Cir. 1995). When formulating the RFC, an ALJ is required to consider all of a claimant’s
impairments, both those that are severe and those that are not. 20 C.F.R. § 404.1545(1)(2).
In this case, the ALJ found that Plaintiff had the residual functional capacity to perform “a
range of light work as defined in 20 CFR 404.1567(b) with the following limitations: the claimant
must avoid climbing ladders and scaffolding; the claimant can lift and carry 10 pounds frequently
and 20 pounds occasionally; the claimant is able to sit for at least one hour at a time and up to four
hours during an eight-hour workday; the claimant can stand for at least 30 minutes at a time and up
to four hours during an eight-hour workday; the claimant can walk for at least 30 minutes at a time
and up to four hours during an eight-hour workday; and the claimant can occasionally stoop, kneel
and crouch.” [AR 27] In making this finding, the ALJ considered whether Plaintiff’s medically
determinable impairments produced his alleged symptoms and evaluated the intensity, persistence
and limiting effects of such symptoms. [Id.]
A residual functional capacity (“RFC”) assessment is “an administrative assessment of the
extent to which an individual’s medically determinable impairment(s), including any related
symptoms such as pain, may cause physical or mental limitations or restrictions that may affect his
or her capacity to do work related physical or mental activities.” SSR 96-8p, 1996 WL 374184 at
*2. It is assessed “based on all of the relevant evidence in the case record, including information
about the individual’s symptoms and any ‘medical source statements.’” Id. “[T]here is no
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requirement in the regulations for a direct correspondence between an RFC finding and a specific
medical opinion on the functional capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 1288
(10th Cir. 2012).
Plaintiff contends that the ALJ erred in failing to consider Plaintiff’s “medically documented
interwoven pain and depression, and diabetes treatment requiring multiple bathroom breaks
throughout the day.” He also argues that the “ALJ did not consider Mr. Gennaro’s obesity” when
he “essentially adopted” the RFC of the consultative examiner who failed to consider Plaintiff’s
obesity at all.
Defendant counters that the Plaintiff effectively challenges the ALJ’s credibility findings,
specifically concerning his pain and his medication’s side effects. Defendant argues that the ALJ’s
credibility findings regarding Plaintiff’s statements of pain were supported by the inconsistencies
in Plaintiff’s statements and the medical records. As for Plaintiff’s obesity, the Defendant notes that
Plaintiff never claimed obesity as a disability nor testified that his obesity limited his ability to work,
and Plaintiff failed to cite to evidence showing that his obesity limited his ability to perform the
sedentary jobs identified by the ALJ.
The Court finds first that the ALJ committed no error in assessing the RFC with respect to
Plaintiff’s depression. The ALJ properly considered the medical evidence concerning the condition,
which was minimal (Plaintiff sought no mental health treatment and told the SSA that he believed
his primary disabilities stemmed from physical conditions, not mental [AR 332]), and thoroughly
discussed the four functional areas for evaluating mental disorders. [AR 25-26] The ALJ further
acknowledged that this preliminary discussion was not sufficiently detailed for RFC analysis and
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asserted that his RFC assessment “reflects the degree of limitation the undersigned has found in the
‘paragraph B’ mental function analysis.” [AR 26] Thereafter, the ALJ engaged in a detailed analysis
of Plaintiff’s depression, considering not only Plaintiff’s testimony, but also his mother’s affidavit,
Plaintiff’s completed Function Report and the medical evidence. [AR 28-29] In addition, the Court
finds no error because the Plaintiff fails to identify which portion(s) of the RFC lack restrictions for
his alleged functional limitations from depression. See Miller v. Astrue, 496 F. App’x 853, 859-60
(10th Cir. 2012) (ALJ did not err when he did not include limitations for an impairment he found
to be severe at step two when that limitation was not “borne out by the evidentiary record.”).
With respect to Plaintiff’s pain, the ALJ similarly discussed the record at length, considering
Plaintiff’s testimony (including his admission that he has a “high pain threshold”) , the documentary
evidence and Plaintiff’s reports to his physicians. [AR 29-30] The ALJ noted that Plaintiff’s chosen
forms of pain relief were “conservative” and “minimal” demonstrating treatment that would not
suggest a severe disability. [AR 29] See Alarid v. Colvin, -- F. App’x --, 2014 WL 6602441, at *3*4 (10th Cir. Nov. 21, 2014) (“the ALJ’s conclusion that Mr. Alarid’s treatment was ‘essentially
routine and/or conservative in nature, consisting only of medications and injections,’ was supported
by substantial evidence”); see also Dixon v. Colvin, 556 F. App’x 681, 683 (10th Cir. 2014) (same).
As for the side effects from Plaintiff’s medication – namely, diarrhea, which causes Plaintiff
to need frequent restroom breaks – the ALJ noted this limitation and referred to Plaintiff’s last
employment position as a Parts Sales Manager at Autozone at which the Plaintiff testified he
frequently took restroom breaks. [AR 30] The ALJ concluded that Plaintiff’s own testimony belied
any notion that frequent breaks limited his ability to perform the job, because Plaintiff testified he
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was fired when he allegedly did not follow company policy regarding a customer transaction, not
as a result of his impairments. [Id.]
Finally, the Court finds the ALJ sufficiently considered Plaintiff’s obesity in the RFC
assessment, particularly noting the evidence from the medical records. The ALJ found “the medical
source opinions have included the effects of the claimant’s obesity in the limitations provided.” [AR
32] Plaintiff argues, however, that the consultative examiner, Dr. Wright, “did not identify obesity
as one of Plaintiff’s diagnoses” and, thus, the ALJ’s adoption of Dr. Wright’s physical restrictions
was in error. The Court disagrees.
First, the ALJ noted that “[t]here is no medical opinion which specifies any impact of the
claimant’s obesity on the other impairments”; thus, he acknowledged that none of the physicians
specifically diagnosed obesity nor noted any limitations from it. [AR 32] Second, while Dr. Wright
did not diagnose Plaintiff as “obese” (nor did any of Plaintiff’s physicians) and did not characterize
Plaintiff as “obese,” he noted Plaintiff’s height and weight and described Plaintiff as “well
developed” and “well nourished.” [AR 418] See Chrisco v. Astrue, No. 12-1144-RDR, 2013 WL
872400, at *4 n.2 (D. Kan. Mar. 8, 2013) (the court found a physician likely considered the
claimant’s body mass in his examination when he described her as “well nourished” and “well
developed,” but did not use the term, “obese”). The Court concludes the ALJ’s finding that the
Plaintiff’s obesity “was considered by the medical sources discussed above [including Dr. Wright]”
is supported by substantial evidence. Moreover, as there is no medical evidence in the record
indicating the Plaintiff’s obesity had restricted his ability to work, it would be improper for the ALJ
to speculate as to the impact Plaintiff’s obesity may have on his other impairments. See Fagan v.
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Astrue, 231 F. App’x 835, 837-38 (10th Cir. 2007) (citing SSR 02-01p).
The Court concludes that the ALJ’s credibility findings as to Plaintiff’s statements regarding
his pain, depression, medication side effects and obesity are supported by substantial evidence and
the Court will not remand the case on this issue.
C.

Did the ALJ Err in Determining that the Plaintiff Could Perform Other Work in the
Economy?
Plaintiff’s entire argument on this issue is stated in one sentence: “Here[,] the ALJ’s

conclusion that Mr. Genanaro could perform his past work as a salesperson and an inspector was
based on testimony from a vocational expert, who was relying on a hypothetical, which did not
include ‘with precision’ all of Mr. Gennaro’s impairments.”2 Opening Brief, docket #13 at 24-25.
Plaintiff cites an Eighth Circuit opinion for the proposition that “testimony elicited by hypothetical
questions that do not relate with precision all of a claimant’s impairments cannot constitute
substantial evidence to support the Secretary’s decision.” Id. (citing Ekeland v. Bowen, 899 F.2d
719, 724 (8th Cir. 1990)).3 However, in that case, the court found that the ALJ did not have the

2

This argument is not only substantively vague (as discussed herein), it is also confusing;
the argument appears to challenge Step 4 of the analysis while the issue itself, as stated, appears
to challenge Step 5.
3

Plaintiff also cites a Tenth Circuit case, Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). Opening Brief, docket #13 at 25. In that case, after listing an ALJ’s duties at Steps 4
and 5 of a disability analysis (none of which includes “stating with precision” all of a claimant’s
impairments in a hypothetical question), the court proceeds to analyze the role of the Dictionary
of Occupational Titles in eliciting evidence from a vocational expert at Step 5 and holds “the
ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary
and expert testimony before the ALJ may rely on the expert”s testimony as substantial evidence
to support a determination of nondisability.” Haddock, 196 F. 3d at 1091. Plaintiff fails to relate
the holdings of this opinion to the present issue, and the Court finds no relation.
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complete report of vocational rehabilitation experts until after the hearing and, thus, improperly
relied on the testimony of the vocational consultant who testified at the hearing based upon a
hypothetical question that did not include all of the vocational rehabilitation experts’ findings. Id.
at 721-22. Conversely, in this case, there is no argument nor indication that the ALJ failed to
include information missing from the record in his hypothetical to Mr. Tisdale. Moreover, the Court
has found that all conclusions/findings reached by the ALJ in this case and challenged by the
Plaintiff are supported by substantial evidence. The Court will not speculate as to what the Plaintiff
means by this challenge to the ALJ’s findings at Step 4 and/or 5. Accordingly, without more from
the Plaintiff as to what he believes was “missing” from the hypothetical, including which particular
impairments, the Court must deny Plaintiff’s request to remand on this issue.
CONCLUSION
In sum, the Court concludes that the ALJ’s error (if any) in rejecting Dr. Wright’s bending
restriction was harmless; his findings and considerations of Plaintiff’s depression, pain, obesity and
medication side effects were supported by substantial evidence; and his analyses at Steps 4 and 5
were sound. The Court finds the final decision is supported by substantial evidence in the record
as a whole and the correct legal standards were applied. Therefore, the decision of the ALJ that
Plaintiff Carmen Gennaro was not disabled is AFFIRMED.

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Dated at Denver, Colorado this 2nd day of February, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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